The opinion of the court was delivered by: NEAL McCURN, Senior District Judge
Plaintiff James Dolan is a self-described "outspoke[n] and
vigorous activist in that Democratic party in the City of Hudson,
located in Columbia County, State of New York." Complaint ("Co.")
at 10, ¶ 26. In this action, brought pursuant to
42 U.S.C. § 1983, plaintiff alleges that his First Amendment and Equal
Protection rights were violated when defendants terminated him in
retaliation for his Democratic party affiliation. This alleged
retaliation occurred when plaintiff was terminated as an
Investigator with the New York State Department of Taxation and Finance ("the Tax Department").*fn1 From defendants'
standpoint, plaintiff's disqualification was not politically
motivated. In fact, it was entirely proper because during the
application process for an investigator position, he omitted
relevant facts pertaining to a prior conviction, which occurred
during his employment as Chief of Police for the Hudson City
Defendants are now moving for dismissal pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. They
are also moving to dismiss under Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief may be granted.
Plaintiff cross moves for an order of discovery pursuant to Fed.
R. Civ. P. 56(f).
I. Hudson City Police Department
Plaintiff first began serving as Chief of Police of the Hudson
City Police Department on October 3, 1986. Co. at 11, ¶ 27.
During his service, plaintiff was the subject of two separate
indictments. Id. at 14, ¶ 39 and 16, ¶ 45. Eventually he was
convicted of four misdemeanors. Id. at 16, ¶ 47. Broadly
stated, from plaintiffs' perspective the motivation for his
indictment was because "[p]rominent Republicans in Columbia
County, including the Sheriff and District Attorney, viewed [him]
as a threat to the Republican Party's political control of
Columbia County and the Sheriff's office in [that] County, which
was source of patronage jobs for County Republicans." Id. at
14, ¶ 38. As a result of his convictions, "plaintiff was placed
on probation, [and ordered to] pa[y] a fine, and [to] complete
community service." Id. at 16, ¶ 47. However, later the
sentencing judge found plaintiff guilty of violating his
probation. Therefore, plaintiff was sentenced to 60 days
imprisonment, continued probation and an increase in the number
of community service hours to be performed. See id., exh. A
thereto at 2.
Plaintiff's career with the Police Department was over.
II. State Investigator Position
Once the dust had settled, "in 1996 plaintiff decided to apply
for a position as an investigator with [the] State in order to
make use of his background and experience in law enforcement."
Id. at 17, ¶ 48. As part of the hiring process, plaintiff took
three different civil service examinations, scoring 100% on two of the tests and 95% on
the third. Id. at 17, ¶ 50. Despite those high test scores and
his number one ranking "on all three statewide eligible lists[,]"
on approximately August 7, 1996 one of the defendants, Joseph R.
Healy, Director of Investigations for the State Civil Service
Department ("Civil Service"), advised plaintiff that "he could
not be appointed at that time[.]" Id. at 17, ¶ 51. The reason
given by Healy was that plaintiff answered "yes" to certain
questions regarding whether he had been discharged from
employment "for reasons other than lack of work or funds,
disability or medical condition; and whether he had ever been
convicted of a crime." Id. at 17-18, ¶ 51.
Plaintiff thus was required to complete additional Civil
Service forms to "evaluat[e] the circumstances of the affirmative
answers" which plaintiff had given. Id. at 18, ¶ 52. As part of
this further background check, plaintiff was required to provide
Civil Service with a report from the Columbia County Department
of Probation. Id. at 19, ¶¶ 55-56. Plaintiff made that request
and Probation responded. Id. at 20-21, ¶ 57. "Civil Service,
for unknown reasons, never received Probation's statement which
it had sent to Civil Service pursuant to petitioner's request.
Affirmation of Robert Siegfried (Aug. 28, 2003), exh. A thereto
(Record on Appeal of Article 78 Proceeding ("R."), at 7. On
August 23, 1996, defendant Healy informed plaintiff that Civil
Service had made "`an informed determination'" and that
plaintiff's "`explanation'" was "`found satisfactory'" and thus
his name could "`be certified' for appointment." Co. at 22, ¶ 59.
Despite certification in 1996, plaintiff was not actually
appointed to an Investigator position until several years later,
on February 17, 2000. Id. at 22, ¶ 62. During the years between
his dismissal as Police Chief and his State appointment,
plaintiff continued to maintain a relatively high profile in
local Democratic politics. Id. at 23, ¶¶ 65-71.
Plaintiff's employment as a Tax Department Investigator was
short-lived, however. He worked for approximately seven weeks.
Soon after his appointment the "Hudson Register-Sun" ran an
article about plaintiff stating, among other things, that his
career with the police department ended "in controversy when he
was prosecuted on a variety of criminal charges relating to this
job as Hudson's police chief." Co., exh. B thereto. That article
went on to note that plaintiff, a Democrat, had been appointed
with a Republican governor in office. Id. at 24, ¶ 73, and exh.
B thereto. Following the publication of that article, purportedly
"Republican Party officials" contacted defendant Hard, who at
that time was the Tax Department's Deputy Commissioner. Co. at
24, ¶ 74. Supposedly she then contacted Tax Department officials
regarding plaintiff's employment. Id. at 24-25, ¶ 74. An
investigation ensued. After a several month investigation into
the circumstances surrounding plaintiff's appointment, on
September 19, 2000 Civil Service revoked plaintiff's appointment
and he was terminated effective September 21, 200. Id. at
30-31, ¶ 89 and 33, ¶ 93. The stated reason for that termination
was that plaintiff did not "disclose in his 1996 employment
application certain facts regarding his violation of probation
and subsequent resentencing on a prior criminal conviction." R.
IV. Article 78 Proceeding
Plaintiff then appealed to the Civil Service Commission and
shortly thereafter commenced an Article 78 proceeding in state
court. Co. at 34, ¶¶ 94 and 95. During the Article 78 proceeding,
relying upon section 50(4) of the Civil Service Law, the Supreme
Court held that the "Civil Service's decision to revoke
[plaintiff's] appointment, . . ., was fully in accordance with
the law." R. at 8. That statute reads in relevant part as
follows: "[T]he state civil service department . . . may
investigate the qualifications and background of an eligible
after has been appointed from the list, and upon finding facts
which if known prior to appointment, would have warranted his
disqualification, . . . may revoke such eligible's certification
and appointment and direct that his employment be terminated[.]"
N.Y.Civ. Serv. L. § 50(4) (West Supp. 2004). In the Supreme
Court's opinion, plaintiff's "parole violation and subsequent
re-sentencing were facts that, if known to . . . Civil Service in
August 1996, would have justified a disqualification and refusal
to certify [plaintiff] on the eligible list." Id. at 8. Thus,
the state supreme court soundly concluded that "even if the
petitioner's application could not be viewed as false or
deceptive to the degree that it did not disclose his probation
violation, Civil Service's decision to revoke petitioner's
appointment, . . ., was fully in accordance with law." Id.
On appeal the Third Department affirmed, also invoking Civil
Service § 50(4), pointing out that Civil Service's decisions
under that statute are "purely a matter of discretion[.]" Dolan
v. New York State Department of Civil Service, 304 A.D.2d 1037,
1038 (3rd Dep't 2003) (citation omitted). The Appellate Division
agreed with Civil Service's rationale for disqualifying
plaintiff, i.e. the integrity required of investigators in the
Tax Department justified revoking plaintiff's position based "upon a finding of material omission of facts that
otherwise would have precluded [plaintiff] from qualification[.]"
Id. at 1039. Then, given the "wide discretion" which Civil
Service is afforded "[i]n determining the fitness of candidates
for civil service employment," the court accurately noted that
its review was "limited to . . . whether the agency action was
arbitrary or capricious[.]" Id. (citation omitted). Given that
"limited" standard of review, the Third Department held that
plaintiff's "failure to mention his probation violation in the
application supplement provided a rational basis for the
conclusion that such omission was deceptive and intentional,
thereby justifying revocation of [plaintiff's] appointment."
In that appeal plaintiff also raised the issue of Supreme
Court's denial of his request for discovery. The Appellate
Division held that the Supreme Court properly denied same because
"`judicial review of an administrative determination is limited
to the record before the agency and proof outside the
administrative record should not be considered[.]'" Id.
(internal quotation marks and citation omitted). The court
concluded by stating that it has "considered petitioner's
additional contentions, including his assertion that he was
denied due process, and [it] f[ound] them equally unpersuasive."
Id. On May 29, 2003 plaintiff sought permission to appeal the
Appellate Division's decision to the New York Court of Appeals.
Siegfried Aff., exh. E thereto. For whatever reason, that appeal
did not go forward.
On April 30, 2003 plaintiff commenced this section 1983 civil
rights action wherein he alleges two causes of action: (1) that
he was terminated as a Tax Department investigator in retaliation
for exercising his First Amendment rights, and (2) that that
termination violated his Equal Protection rights.
"When (as here) a jurisdictional challenge under Fed.R. Civ.
P. 12(b)(1) is addressed to the complaint, a court accepts as
true all the factual allegations in the complaint and must draw
all reasonable inferences in favor of the plaintiff." Lunney v.
United States, 319 F.3d 550, 554 (2d Cir. 2003) (citations
omitted). The same standard applies to a Rule 12(b)(6) motion.
See Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). In
setting forth their respective version of the facts, the parties
have cited to documents beyond the complaint however. For
example, they heavily rely upon the record on appeal in
plaintiff's prior Article 78 proceeding. Thus it is necessary to determine to what extent a court may consider
matters outside the complaint here.
Even though Rule 12(b) motions are "testing the adequacy of the
complaint," see United States v. City of New York,
359 F.3d 83, 88 (2d Cir. 2003) (citation omitted), in deciding such
motions courts also may "review documents extraneous to the
complaint[.]" Salichs v. Tortorelli, No. 01 Civ. 7288, 2004 WL
602784, at *2 (S.D.N.Y. March 29, 2004) (citing Chambers v. Time
Warner, 282 F.3d 147 (2d Cir. 2002)). Courts may look to such
documents when they are "`integral'" to the complaint because the
complaint "relies heavily upon [the] terms and effect [of those
documents.]" Pollock v. Ridge, 310 F. Supp.2d 519, 524 (W.D.N.Y.
2004) (internal quotation marks and citations omitted) (KC). A
court may also take into account "any documents attached to the
complaint or incorporated by reference[,]" Rombach v. Chang,
355 F.3d 164, 169 (2d Cir. 2004) (citation omitted), as well as
"`matters of which judicial notice may be taken.'" United States
Fidelity & Guaranty Company and American Home Assurance v.
Petroleo Brasileiro S.A., No. 98 CIV 3099, 2001 WL 300735, at *2
(S.D.N.Y. March 27, 2001) (quoting Leonard F. v. Israel Discount
Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)) (other
citation omitted). As to the latter, a court is "permitted to
take judicial notice of court documents from previous actions."
Washington v. United States Tennis Association, Inc.,
290 F. Supp.2d 323, 326 (E.D.N.Y. 2003) (citing, inter alia,
Marchon Eyewear, Inc. v. Tura L.P., No. 98 CV 1932 (SJ), 1999
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